Electronic Monitoring of Employees May Come Under Greater Scrutiny

Dean R. Dietrich and Davis Runde

By: Attorneys Dean R. Dietrich and Davis Runde

Most employers understand the National Labor Relations Board (“NLRB”) has changed its focus and has now become far more employee- or union-friendly in its interpretation of the employment laws impacting employees in the workplace.

General Counsel for the National Labor Relations Board has issued several directives calling for changes to the interpretation of union election laws and other legal requirements that favor employee rights. One of the most recent pronouncements suggests the NLRB will be very closely monitoring how employers engage in electronic monitoring of employees in the workplace to ensure the electronic monitoring does not restrict or inhibit employees from exercising their rights to engage in union activity.

In a recent Legal Memorandum (GC 23-02) the General Counsel indicated the NLRB should protect employees from intrusive or abusive and electronic monitoring by management. General Counsel asserted that she would “vigorously enforce extant law” and urge the Board to apply current law “in new ways” to ensure that management practices do not interfere with the Section 7 rights of an employee under the National Labor Relations Act.

The purpose behind the Memorandum is to dictate that the NLRB should be exercising far greater supervision and oversight of the use of artificial intelligence and surveillance monitoring of employees. The General Counsel wants to ensure that employees are not subject to surveillance activities by the employer during break time or other off-duty time when the employee may be involved in soliciting or distributing union literature.

The General Counsel is also considering a proposal for a new “balancing test” where the employer will be required to justify the use of technology such as surveillance devices to oversee the activities of employees in the workplace. This is different than the current requirements that the NLRB must show the surveillance has negatively impacted the rights of employees to exercise their union organizing rights. The General Counsel also appears to suggest that an employer will be required to report the extent of expenditures made on electronic management technology to the Department of Labor as part of the settlement of any unfair labor practice charge filed by the NLRB.

This is a new age of enforcement from the NLRB and employers need to be aware of the potential for legal challenge to the use of technology to monitor employees in the workplace. As always, if you have questions about this Memorandum or other employment matters, don’t hesitate to contact Dean or Davis at 715-839-7786.